Between a Rock and a Hard Place: The Fate of Palestinian Political Prisoners

On 11 October 2011, the Israeli government and Hamas authorities concluded a deal whereby 1,027 Palestinian prisoners will be released in exchange for captured Israeli soldier Gilad Shalit, a long-awaited development for Palestinian prisoners, their families and Palestinian society. As organizations dedicated to the promotion and protection of human rights in the occupied Palestinian territory (oPt), however, it is the obligation of Addameer and Al-Haq to highlight their concerns and condemn those aspects of the deal that are fundamentally at odds with international law.

Only 27 of the total 35 women currently held in Israeli prisons were included in the first list of prisoners to be released, despite agreement by Israel that all female political prisoners would be included in the exchange. Crucially, of the first 477 prisoners to be released, 205 of them will not be reunited with their families as their release has been made contingent on their deportation or transfer, both of which are in violation of international law. Of the West Bank prisoners, including East Jerusalemites, 18 will be transferred to the Gaza Strip for a period of three years while an additional 146 will be forcibly relocated there on a permanent basis. A further 41 prisoners, including one woman, will be deported outside of the oPt, to as-of-yet unknown third countries.

According to Sahar Francis, director of Addameer, their exile, whether in the Gaza Strip, which has been hermetically sealed off from the rest of the oPt by Israel, or outside the oPt, “effectively serves as an extension of their previous isolation from their homeland and families and in many cases can be seen as a second prison sentence”. These terms violate Article 49 of the Fourth Geneva Convention, which prohibits forcible transfers and deportations of protected persons, a proscription that is part of customary international humanitarian law. Unlawful deportation or transfer also constitutes a grave breach of the Fourth Geneva Convention (GC IV) and qualifies as one of the most serious war crimes. Given the stark asymmetry in power, resulting from the belligerent occupation, between the Palestinian and Israeli parties involved, neither the potential “consent” of the prisoners nor the fact that the deal was negotiated by a Palestinian authority can serve as justification for the deportations as this contravenes the spirit of articles 7, 8 and 47 of the GC IV concerning the inviolability of the protections afforded by the Convention.

While the exchange deal should be a cause for celebration, notably for the 1,028 concerned families, it is overshadowed by the continued incarceration of approximately 4,347 Palestinian political prisoners. Shawan Jabarin, director of Al-Haq, notes that “prospects for their release continue to be dictated by Israeli political interests, just as the fate of 1,027 prisoners was staked on the release of a single Israeli soldier, whose capture has further adversely affected the rights of countless more Palestinians living under Israeli blockade in the Gaza Strip.”

These political prisoners—arrested on the basis of Israeli military orders that criminalize any form of opposition to the occupation; tried by Israeli military tribunals that do not conform to international due process standards or held in administrative detention without charge or trial; and imprisoned in harsh and illegal detention conditions that have recently led them to launch an open-ended hunger strike—are entitled to justice. Before the attention they have received as a result of the exchange deal wanes, it is imperative to demand a fair and permanent resolution to their plight, in the form of unconditional release, in compliance with international humanitarian law.